United States v. Eugene L. Dawdy

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The United States appeals the suppression of evidence supporting a charge against Eugene L. Dawdy of possession of methamphetamine with intent to distribute. The district court found that the police investigative stop that resulted in the charge was invalid from its inception; the court ruled, moreover, that even if the stop were valid, the subsequent search of the Dawdy’s car was not reasonably related in scope to the purpose of the stop. The district court further concluded that Dawdy’s resistance to arrest did not create an independent ground for arrest and search of his car. We reverse.

I.

Shortly after 10:00 pm on Sunday, December 13, 1992, Iowa State Trooper Stuart Christians observed appellee Dawdy’s automobile parked behind Greenville Pharmacy in Sioux City, Iowa. Christians knew that the pharmacy was not open 24 hours and that it was normally closed on Sunday night; he was, moreover, aware that there had been apparently false burglary alarms at the pharmacy on several other occasions. The parking lot was otherwise empty, and Dawdy’s car was situated at some distance from either the entrance to the pharmacy or the surrounding homes. Although the car was occupied, its lights were off.

Christians entered the parking lot in order to investigate. As he did so, Dawdy turned his car around and drove toward the same entrance to the lot. Christians stopped, left the squad car, and held up his hand to indicate that Dawdy should stop. Dawdy backed his car in the opposite direction, and Christians turned on the flashing lights on top of the squad ear. Dawdy stopped. The trooper then asked Dawdy what he was doing, and Dawdy responded that he was just turning around. After Christians informed Dawdy that he had seen the car parked in the lot, Dawdy claimed that he was waiting for someone. Christians took driver’s licenses from both Dawdy and his passenger, David P. Pinney, and asked the communications center to run warrant cheeks. Although there were no outstanding warrants, Dawdy appeared nervous, shifted in his seat, and opened the ear door several times as if to exit. During this time, a pickup truck pulled in behind the squad car. Because Christians was alone and did not want anyone at his back, he asked the driver, Doug Cooper, to leave. Cooper said that he had come to the lot to wait for someone, but he eventually agreed to leave.

Other law enforcement officers arrived soon afterwards, including Iowa State Trooper Gambel and Woodbury County Deputy Sheriff Boetger with his police dog, which is used both to control situations and to detect controlled substances. At no time did the dog actually assist the officers. Christians noticed Dawdy drop a key from the open window of his vehicle, picked the key up, and returned it. Gambel then found a black leather pouch containing a white, powdery substance lying on top of the slushy snow near the car. Dawdy left his car at Christians’s request and was placed under arrest. When the trooper tried to handcuff him, however, he resisted, and during the ensuing scuffle, he threw away the key that he had dropped earlier. A search of his person revealed a large wad of cash, and a search of the interior of the vehicle revealed a small scale. Dawdy’s passenger was also arrested. Iowa State Trooper Eral and Sioux City Police Office Mark Skaff then began an inventory search of the ear. When they realized that the trunk key was missing, they searched the area and found the key that Dawdy had thrown away. In the trunk, Eral and Skaff found more white powder. Both the powder in the black leather pouch and the powder in the trunk field tested positive as an amphetamine.

After Dawdy was charged with possession of methamphetamine with intent to distribute, he filed a motion to suppress all evidence obtained as a result of the investigative stop and the arrest. The magistrate’s report recommended that this motion be denied. The district court, however, ordered the suppression of all evidence resulting from the stop, with the exception of the black pouch found on top of the snow near the car. The district court subsequently denied the government’s motion for reconsideration. The government now appeals the denial of its motion and the suppression of evidence.

II.

The government argues that the investigative stop that resulted in Dawdy’s arrest was supported by a reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We review the district court’s findings of fact for clear error and review the ultimate conclusion of whether the stop violated the Fourth Amendment de novo. United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994), citing United States v. Hernandez, 854 F.2d 295, 297 (8th Cir.1988).

For a Terry stop to be considered valid from its inception, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880 (footnote omitted). Factors that may reasonably lead an experienced officer to investigate include time of day or night, location of the suspect parties, and the parties’ behavior when they become aware of the officer’s presence. See Losee v. Dearinger, 911 F.2d 48 (8th Cir.1990) (in which defendants, who were parked illegally behind a business which was closed and near an alley which had been used as an escape route for past robberies, attempted to avoid police); United States v. Briggman, 931 F.2d 705 (11th Cir.1991) (in which defendant, who was parked at 4:00 am in a high crime area in a lot adjacent to businesses which were closed for the night, attempted to evade the investigating officer). Christians observed Dawdy and his passenger parked after 10:00 pm on a Sunday night at the back of the otherwise deserted pharmacy parking lot and at some distance from the surrounding residences. The trooper reasonably believed that the pharmacy was closed, and remembered the previous burglary alarms. When the squad car entered the parking lot, Dawdy started his car and attempted to leave. Even after Christians got out of the squad car and held up his hand, Dawdy attempted to turn his car around in order to avoid contact with the state trooper. The totality of these circumstances, not merely the presence of two men sitting in a parked automobile at night, was sufficient to lead a trained law enforcement officer rationally to suspect that a crime was being committed and to justify the initial stop.

A valid Terry stop must also be “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. at 19, 88 S.Ct. at 1878, citing Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1651-52, 18 L.Ed.2d 782 (1967) (Mr. Justice Fortas, concurring). Christians’s initial stop of Dawdy involved a request for identification and an explanation of his presence in the parking lot, actions which we described in United States v. Abokhai as “minimally intrasive.” 829 F.2d 666, 671 (8th Cir.1987). Only after Dawdy gave Christians conflicting answers did the officer ran a warrant check on the driver’s licenses of Dawdy and his passenger. Although Dawdy appeared nervous and opened his ear door several times while Christians waited for the results of the warrant checks, Christians took no further action with respect to Dawdy or his passenger until a fellow officer arrived and discovered the black pouch containing methamphetamine. Thus the scope of the investigative stop did not exceed Christians’s reasonable suspicion of criminal activity.

III.

The government further argues that Dawdy’s arrest and the subsequent search of his vehicle were justified by the discovery of the black pouch containing the initially unidentified white powder. The district court correctly reasoned that the seizure of the pouch by the police did not violate the Fourth Amendment, as Dawdy had no legitimate expectation of privacy in the surface of the pavement near his car. The location of the pouch near the car did, however, establish a nexus between the pouch and Dawdy. The pouch had apparently fallen to the ground only a short time earlier, since it lay on top of the slushy snow near the car, and both the open car window and Dawdy’s repeated attempts to leave the car during the warrant cheek allowed opportunities for him to drop the pouch. In addition, Christians had just observed Dawdy drop a key to the ground from the open window. Although the officers did not ascertain the identity of the white powder in the pouch before arresting Dawdy, the probable cause standard was met by the existence of a “practical, nontechnical” probability that criminal evidence was involved. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983), citing Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). The arrest itself justified the search of Dawdy’s person, United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476-77, 38 L.Ed.2d 427 (1973), and of the passenger compartment of his automobile, New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). Because probable cause justified the search of the lawfully stopped vehicle, moreover, it also justified the search of “every part of the vehicle and its contents that may conceal the object of the search,” including the trunk. United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982). Dawdy’s arrest and the subsequent discovery of a large wad of cash in his pocket, a small scale in the glove compartment, and additional methamphetamine in the trunk of his car did not violate the Fourth Amendment, and the evidence may be fairly presented at trial.

IV.

As an additional justification for Dawdy’s arrest, the government notes that several courts consider resistance to even an illegal arrest to be grounds for a second, legitimate arrest. See United States v. Nooks, 446 F.2d 1283, 1288 (5th Cir.1971) (holding that where the nexus between the original arrest and search had been attenuated by the defendant’s attempt to flee, the fruits of the search were not attributable to the original arrest), cert. denied 404 U.S. 945, 92 S.Ct. 299, 30 L.Ed.2d 261; United States v. Garcia, 516 F.2d 318, 319-20 (9th Cir.1975) (holding that neither illegal conduct on the part of the police nor the common-law right to resist an unlawful arrest excluded defendant’s flight from police from consideration as the basis for a lawful arrest); United States v. Waupekenay, 973 F.2d 1533, 1538 (10th Cir.1992) (holding that evidence of a separate, independent crime initiated against police officers in them presence after an illegal entry or arrest will not be suppressed under the Fourth Amendment); United States v. Bailey, 691 F.2d 1009, 1019 (11th Cir.1982) (holding that despite a close causal nexus between an allegedly illegal arrest and the defendant’s response, that response provided probable cause for a second, lawful arrest), cert. denied, 461 U.S. 933, 103 S.Ct. 2098, 77 L.Ed.2d 306 (1983). Although the Eighth Circuit has not previously addressed this precise issue, we now hold that a defendant’s response to even an invalid arrest or Terry stop may constitute independent grounds for arrest.

In determining whether Dawdy’s struggle with the state trooper provided such independent grounds for arrest, the dissent would have us consider the state trooper’s subjective motivation for making the arrest. The standard for assessing probable cause, however, has long been an objective one. Traffic stops, for example, are measured by a standard of “objective reasonableness.” United States v. Miller, 20 F.3d 926 (8th Cir.1994) (citations omitted). Chief Justice Marshall noted that “the term ‘probable cause,’ according to its usual acceptation, means less than evidence which would justify condemnation, and in all eases of seizure, has a fixed and well-known meaning.” Locke v. United States, 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364 (1813). Probable cause for arrest or for search and seizure exists where the circumstances are “sufficient in themselves to warrant a man of reasonable caution in the belief’ that criminal activity is in progress or has occurred. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). These conditions “are not technical, they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), citing Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949). The struggle that ensued when the state trooper attempted to handcuff Dawdy, though quickly suppressed, would provide a reasonable police officer with probable cause for an arrest under Iowa law. See Iowa Code Ann. § 804.12 (West 1994) (stating that a person is not authorized to use force to resist an arrest ... even if thé person believes that the arrest is unlawful or the arrest is in fact unlawful). Drawing again on the analogy to traffic stops, “we see no reason for requiring an officer’s state of mind to perfectly match his legitimate actions.” United States v. Cummins, 920 F.2d 498, 501, cert. denied 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991). Thus, assuming arguendo that Christians’s initial stop and arrest of Dawdy were invalid, Dawdy’s resistance provided independent grounds for his arrest, and the evidence discovered in the subsequent searches of his person and his automobile is admissible.

Y.

For the foregoing reasons, we reverse the order of the district court suppressing the evidence against Dawdy and remand this ease for trial.